T 124/09 – Let Him Speak

This is an appeal against the revocation of the opposed patent.

The decision contains an interesting passage on oral submissions by an accompanying person during oral proceedings (OPs):

[2.1] In a letter dated 15 October 2012, the appellant’s representative, Mr Heimdal, requested permission for Mr Malmqvist, who would accompany Mr Heimdal to the OPs, to make oral submissions.

[2.2] During the course of the OPs, [opponent I] requested that Mr Malmqvist should not be allowed to speak. This request was made – somewhat inappropriately – after the debate concerning the admissibility of the main request [...] had been concluded, the case for the appellant having been presented solely by Mr Malmqvist. Apart from the fact that Mr Malmqvist was not an authorised representative, no reasons were provided in support of this request.

[2.3] In decision G 4/95, the Enlarged Board of Appeal decided that

“During OPs under A 116 in the context of opposition or opposition appeal proceedings, a person accompanying the professional representative of a party may be allowed to make oral submissions on specific legal or technical issues on behalf of that party, otherwise than under A 117, in addition to the complete presentation of the party’s case by the professional representative” (see Headnote I).

In the present case, it was in fact Mr Malmqvist who presented the complete case for the appellant, Mr Heimdal only interjecting where necessary. However, the Board saw no reason to object to this arrangement as long as the presentation of the case was made under the continued responsibility and control of the professional representative Mr Heimdal. The Board therefore allowed Mr Malmqvist to continue with his oral submissions.

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